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<br />\ SlIK) el- al. <br /> <br />~ <br /> <br />FINAL MANUSCRIPT <br />Accepted for publication in Rivers: Studies in the Science. Environmental Policy and Law of Instream Flow <br /> <br />Turning Instream Flow Water Rights Upside Down <br /> <br />Nicole Silk <br />Freshwater Learning Center Director, Freshwater Initiative <br />The Nature Conservancy <br />Boulder, Colorado 80302 USA <br /> <br />Jack McDonald <br />. Assistant Project Director-Natural Resources <br />Northwest Water Law and Policy Project <br />Northwestern School of Law, Lewis and Clark College <br />Portland, Oregon 97219-7799 USA <br /> <br />Robert Wigington <br />Water Attorney <br />The Nature Conservancy <br />Boulder, Colorado 80302 USA <br /> <br />ABSTRACT: Conventional instream flow water rights protect up to a specified level of <br />flow to be left in a stream and indirectly allocate the remaining flows for water <br />development. Such iustream water rights have been quantified with constant year-round <br />or monthly values that bear little resemblance to ariver's natural pattern of flow and that <br />may maximize the reservation of water for development. In this paper, we examine <br />whether instream flow water rights can be turned "upside-down" by directly specifying a <br />level of water development and protecting the remaining flows in the stream; review the <br />structure of such upside-down instream flow water rights and a host of examples under <br />state and federal law; explore one case in which instream flows were protected upside- <br />down, not with water rights but under a federal regulatory scheme; summarize our <br />arguments for the legal recognition of upside-down instream flow water rights; and <br />suggest that such rights be considered when seeking to protect complex and not easily <br />predictable natural flow patterns. <br /> <br />KEY WORDS: Instream flow quantification, minimum flows, natural flows, river <br />ecosystems, water development. <br /> <br />~~~3 <br />